1 In the early hours of the morning on 27 November 2005, a young man fell to his death from the first floor of a converted warehouse. After a trial before a Supreme Court jury, the applicant ('Baker') was found guilty of his murder. His co-accused ('LM') was acquitted. Baker was sentenced to 17 years' imprisonment with a non-parole period of 12 years.

2 He now seeks leave to appeal against the conviction on the ground that the verdict of the jury is unreasonable and cannot be supported having regard to the evidence. This is what is conventionally referred to as the 'unsafe and unsatisfactory' ground. Before considering the ground, it is necessary first to summarise the events.

3 On the evening in question, a party was being held at the warehouse. It was both a birthday celebration and a housewarming. Somewhere between 100 and 200 people attended. A number of witnesses at the trial gave evidence that there was a good atmosphere at the party. The party theme was 'roller-disco'. There were people in costume and there was music and dancing.

4 Amongst those attending were Baker, LM, and the victim ('S'). Also in attendance was Ali Faulkner ('Faulkner'), a friend of Baker's. At about 3.00 am, there was an outbreak of unprovoked violence in the main party area. Baker and Faulkner attacked party-goers at random and inflicted injuries. Faulkner subsequently pleaded guilty to a number of offences arising from this incident, and was sentenced to five years and nine months' imprisonment with a non-parole period of four years.

5 Soon afterwards, Baker, Faulkner and LM went out of the party through a door into the stairwell. Outside the door there was a landing, on one side of which were nearly full-length windows. The death of S occurred after he crashed through the glass of the window and fell 5.4 metres to the footpath below. The question for the jury was whether the Crown had established that it was the actions of Baker and/or LM which caused S to go through the glass and, if so, whether at the time of the relevant actions the accused intended to cause S really serious injury.

6 As the verdict shows, the jury reached an affirmative conclusion on both issues as against Baker, but not as against LM. The contention for Baker on the appeal was that the jury could not have been satisfied beyond reasonable doubt that either of the accused had the requisite intent at the relevant time.

7 The Crown case was that the two accused - acting together - attacked S and that, as a consequence of that attack, he was forced backwards through the glass. The prosecutor summarised the case for the jury in these terms:

... [O]ne or other or both of the accused dealt blows and/or had other contact with [S] that caused him to go through the window and that was either a punch that forced him through the window, a push that forced him through the window or as he was backing away he fell through the window. The Crown does not say that at the time either of the accused intended for him to go through the window. What we say is that was a consequence of what they did that he ended up going through the window.

8 The Crown contended that Baker and Faulkner had initiated the attacks inside the party and had then been joined by LM who

lent his assistance to his friends in the unprovoked assaults that occurred at the party. From that point in time [LM] was acting, the Crown will say, in a legal sense, as an accomplice of the others. This, we say, continued when [LM] and Mr Baker end up attacking the deceased on the landing.

9 The prosecutor emphasised to the jury that it was not the Crown's case that either accused had intended to kill S:

It is not alleged - and I reiterate this - that it was their intent to force [S] through the window; rather, we say their intention was to cause really serious injury. That intention is manifested when one considers the evidence which establishes the high degree of violence, the nature and severity of the attack not only on [S] on the landing, but on those people both inside the party and on [S] when he was on the landing.

What we say is that there was a shared intention to assault various people at this party and that extended out onto the landing and it included [S] and their intention was to cause really serious injury. There was ferocious punching from time to time, pushing, hitting people with bottles. There was even an attempt to raise a chair and use that in some way. Some of it happened inside the party, some of it happened on the landing, but when you put it altogether we say that manifests the intention. We also say that you can find that both of the accused were involved in the punching, pushing and so on, so that they were both involved and manifested an intent to cause really serious injury. The unfortunate consequence of all of this was that [S] went through the window. That was a by-product of their intention to cause him really serious injury. If you, the jury, when you come to consider your verdict, find that it was the accused's intention to cause really serious injury and that as a result of their actions [S] went through the window and, therefore, fell to his death, then the Crown submits that you would find them both guilty of the crime of murder.

10 The foundation of the argument on appeal was the uncontroversial proposition that, for criminal responsibility to attach for S's death, the requisite mental element had to be present when the act(s) which caused his death occurred. That is, for either of the accused to be guilty of the murder of S, the jury had to be satisfied beyond reasonable doubt that when the accused (or either of them) did the act(s) which caused S's death, they (or he) had the requisite intent, that is, intended to cause S really serious injury.

11 Reliance was placed on the decision of the High Court in Meyers v The Queen.[1] In that case, the accused had attacked his girlfriend and had inflicted injuries on her. As identified by the High Court, the issue before the jury, and on the appeal, was whether the accused

had the intention to cause really serious injury to [the victim] at the time when he inflicted the blow or blows which caused her death.[2]

12 The Court recited the following passage from the reasons of Brooking JA (with whom Teague J agreed) in the Court of Criminal Appeal:

The real question for the jury was that of the intention with which the applicant did the acts which caused the fatal head injury. But that injury was not to be considered in isolation from the other injuries. The whole altercation was one episode. The fatal head injury, and its infliction, were not to be considered in isolation from the other injuries sustained by [the victim] and indeed the whole course of events in the applicant's home that night, although the ultimate question for the jury was whether the Crown had proved beyond reasonable doubt that the acts causing death were accompanied by the necessary specific intent. The infliction of injuries other than the fatal injuries was to be taken into account by the jury in considering that ultimate question.[3]

13 Importantly for present purposes, the High Court expressly agreed that the whole of the circumstances could be looked at in order to determine whether the acts causing death were accompanied by the necessary specific intent (that is, an intent to cause really serious injury). Their Honours went on:

But it would not be correct to assume that the act which caused death - there may have been only one such act - was accompanied by the intent which accompanied all the other acts that occurred in the course of the fighting. Although an intent to inflict really serious injury could reasonably be inferred from the totality of the injuries inflicted on [the victim], it does not follow that the appellant had that intent at the time when he did the particular act which resulted in her death.

An accused person who unlawfully kills another is not guilty of murder unless he does the particular act which causes the death with one of the specific intents that is an essential element of the crime of murder. The particular act and the intent with which it is done must be proved by the prosecution beyond reasonable doubt. Act and intent must coincide. If the circumstances of a fatal altercation are such that the prosecution can prove that some acts were done with the necessary intent but cannot prove that other acts were done with that intent, no conviction for murder can be returned unless there is evidence on which the jury can reasonably find that the act which caused the death was one of those done with the necessary intent.[4]

14 In the present case, what was said to make the conviction unsafe was that there was an available hypothesis, consistent with Baker's innocence, which could not be excluded beyond reasonable doubt. That hypothesis was that, whatever 'mechanism' had caused S to go through the glass, it was not accompanied by the requisite mens rea:

(a) in Baker, if it was an act of Baker's which caused S to go through the glass;

(b) in either Baker or LM, if the causative act was that of LM; or

(c) in either Baker or LM, if it was S's own act, for example, in backing away or falling backwards through the glass.

15 In order to assess this contention, it is necessary first to examine the eyewitness accounts of what occurred and then to consider the availability of the alternative hypothesis as to intent.

16 The written submission for the applicant referred to the evidence of five eyewitnesses, who either saw S go through the glass or observed the events immediately leading up to his fall. The submission quoted various parts of the evidence of each witness and contended that their evidence - presumably taken as a whole - provided 'an evidentiary foundation' for the alternative hypothesis.

17 The difficulty which this submission confronts is twofold. First, as will appear, a review of the eyewitness testimony reveals two quite different versions of what occurred in the period immediately preceding the fall. It follows that any attempt to combine portions of the conflicting accounts into an amalgam favourable to Baker must necessarily fail. Secondly, the jury's verdict shows that they clearly preferred one version (that directly implicating Baker) over the other version (that directly implicating LM). For reasons which follow, I am quite satisfied that it was open to the jury to take that course.

18 The first version, implicating Baker, was that given by the witnesses Doig and Arcaro, and to a lesser extent, Stuart.

19 Doig was on the landing, standing just in front of the window. S was also on the landing. Five or six black men came out of the party onto the landing. They were acting 'very aggressively'. They started to push S and then to beat him up. S was swung up onto the railing at the edge of the landing, and pushed against it by one of the others. Baker then took a run up and, with a 'flying knee', kneed S in the chest or ribs. According to Doig, 'it was constant punching'.

20 The group then left S at the top of the stairs and walked down to a lower landing. S was looking bewildered and had a red eye. He then said something like: 'you bastards'. Baker then ran back up the stairs towards S and began punching him. Baker was acting 'in a very psychotic manner'. Another tall black man was also punching S at this time. Baker then threw S against the wall and 'king-hit' him. Then Baker

tried to hit [S] in the face and it missed, and he hit the wall with his hand and then he did hit him in the face and then he punched him again and then he, you know, it was either a punch or a push right near the window and [S] went literally flying through the window.

... [A]s I remember it, [Baker] tried to punch [S] in the head and it missed and it hit against the wall quite hard; then he did connect and then there was one more punch to the head or around that area and then the next punch or a push or a movement that was right up against the glass, he went flying through the window; ...

21 Under cross-examination, Doig denied that his recollection was shaky, but acknowledged the possibility that he might be mistaken. He confirmed his recollection that it was 'a particular man [Baker] just punching unmercifully, relentlessly' into S. Asked by counsel for Baker to describe how many punches he had seen, Doig said:

... [W]hen [S] was up against the railing he was being ... punched; it wasn't like they were just going one, two, stop; you know, it was punching and then the other guy would knee him and they would come up and they were punching him. The whole time it was constant punches and him trying not to be punched. I didn't analyse exactly how many punches were connecting ...

I can't say how many punches were thrown while they were tussling, the two dark-skinned and the white guy, but they were trying to hit him and then as he was thrown onto the wall he was - they tried to hit and that would have been one but he missed because he hit the wall and then there was two others after that which connected and then the third was going through the window - yes, I don't know if it was a punch or a push, I can't say.

22 Arcaro was standing on the landing, next to Doig, near the top of the stairs. As he was about to walk downstairs, a group of three or four African men walked past and went down the stairs in front of him, to the middle landing. One of them (Baker) looked back up at the stairs at S, said something to him, and ran back up and started to fight with him.

23 It was a one-on-one fight. Arcaro did not recall anyone else being involved. Baker was fighting and punching and pushing S, who did not really fight back. A few people tried to restrain Baker, including Doig. Baker was 'incredibly aggressive ... every movement ... was kind of aggressive and wild.' The aggression was reflected in the punching.

24 At one stage during the fight Baker picked up a chair and was ready to hit S with it, but the chair was taken from him by others. Baker and S 'worked their way' during the fight to the left of the window. There was a process of pushing and shoving. Then 'it was definitely a strong motion with the right hand' by Baker, either a punch or a push, that sent S through the window.

25 Under cross-examination, Arcaro confirmed that he could see Baker's arm moving forward. Baker had used his right arm to force S out the window. Arcaro did not, however, see Baker's hand connect with S. Arcaro rejected the suggestion, put by counsel for Baker, that a third person (LM) had come out on to the landing and 'taken up the fight'. He said he was 'very sure' that Baker was the person he saw fighting S and the person he saw punch or push S through the glass. He was certain of this because '... I was following it, I was watching the fight, that's where my attention was ... I was looking at the person who was in the fight ...'

26 Stuart said he had first witnessed violence inside the party. He then went outside before coming back up the stairs where he saw Doig on the landing. As he approached the door to enter the party, it opened and a group of people came out. Baker was being ushered out, with two other African men, by a number of other people. Baker was the most agitated of the three. He was 'very angry, very animated' and was 'passionately ... resisting' being removed from the party.

27 The three Africans were ushered down the stairs, and then came back up again, in a 'fighting manner'. When they came back up the stairs, Baker was fighting quite a bit. One of the others was trying to stop it.

28 S was 'being struck by more than one person' and what eventually happened to him occurred 'by virtue of the position he was [in].' Stuart said that 'this immense activity broke out before [S]' and he got 'bumped back' by 'the velocity of the activity'. (Stuart's evidence-in-chief here departed from the statement he had given police shortly after the incident, a statement which he had adopted in full at the committal. The prosecutor was therefore permitted to have Stuart refresh his memory by reading his statement in the absence of the jury.)

29 Thereafter, Stuart gave evidence that Baker was involved in a 'quite severe fight'; his actions were 'scary'; and it was 'like a frenzy of blows ... with hands and feet.' Stuart maintained, however, that S had not been the target of the attack and had gone through the window because he was 'pushed back by the force of what was occurring.'

30 This evidence was still so far removed from what was in Stuart's witness statement that the judge permitted the prosecutor to put leading questions to Stuart. Thereafter Stuart confirmed that:

• when Baker came out onto the landing, he was yelling in an aggressive and threatening manner;
• Baker then went into a furious rage of hits and punches. He had his eyes fixed on S and was kicking him;
• Baker carried out a sustained attack on S;
• another African man also punched S but not at the same rate as Baker was punching, 'not by far';
• he could recall action by Baker with both hands and feet. 'I can recall both being active, and they did connect' with S.
• S was fending off blows and attempting to get away from the window area;
• the ferocity of the attack on S caused him to be 'kicked or pushed' through the window.

31 Under cross-examination by counsel for LM, Stuart confirmed that Baker appeared to be acting of his own accord and could not have been stopped by anyone else. Under cross-examination by counsel for Baker, however, Stuart said that the white male whom Baker was hitting, punching and kicking was not the person who went out the window.

32 This last answer was a direct contradiction of the evidence Stuart had given in response to the prosecutor's leading questions. In final address, the prosecutor described Stuart as a 'fairly odd sort of individual', who had given 'some very odd evidence'.

33 The alternative version of events was given by the witnesses Asfer and Masonga.

34 Asfer was on the landing with Masonga and one other person (Morgan), when Baker and Faulkner came out the door from the party, looking upset, and walked downstairs. They said they had been involved in a fight inside. S then came out of the party onto the landing and said to Baker and Faulkner, 'Why did you hit me?' Baker and Faulkner then started running back up the stairs. As they were coming back up, LM came out onto the landing from the party.

35 When they reached the top of the stairs, Morgan grabbed and restrained Faulkner, while Asfer grabbed and restrained Baker. At that point, LM started fighting with S. Baker was not fighting anyone. Asfer did not see Baker make any contact with S. Indeed, he could not have made contact with S because Asfer was holding him. At some point, Baker picked up a chair and held it over his head but was forced to drop it because Asfer was still holding on to him. Baker was trying to get free from Asfer's restraint.

36 LM continued to fight with S. They were both punching each other. S could have walked away. Baker had no physical contact with S because Asfer was restraining him. LM was facing the window and S was facing the stairs. The fight kept going and the window broke. Asfer could not see what happened because he was struggling with Baker. He only heard the window break.

37 In the first statement which he gave to police, Masonga said that he had not seen any fighting on the landing. He accepted under cross-examination that the statement was false, that it included a number of 'inventions', and that he had known it was false at the time he signed it. He could give no explanation for having told lies. Later he said that he had done so because he had not wanted to get involved.

38 In his evidence-in-chief, Masonga said that he saw Baker, LM and Faulkner come out of the party and go down the stairs to the middle landing. After a pause, Baker and LM came back up the stairs. Baker approached a white male who was on the landing near the railing, and a fight broke out between them. LM came up the stairs and approached a different white male - S - also on the landing, and they started fighting. There were thus two fights happening. LM was fighting S. Baker never fought S. Masonga did not see anyone go through the window.

39 Under cross-examination, however, Masonga said that S had lost his balance during the fight with LM. He had taken no more than two steps backwards, to recover his footing, and had fallen out of the window. Masonga was clear that LM was the one who had had the last physical contact with S before he went out the window.

40 As can readily be seen, the alternative versions were not just variations on an essentially consistent theme. Rather, they were irreconcilably different, as counsel for LM emphasised in his final address to the jury. On the first version, it was Baker whose punching and pushing of S resulted in him going through the glass. On the second version, however, Baker could not possibly have been responsible for forcing S through the glass, as he was being held by Asfer or (alternatively) was fighting someone else altogether. On that version, it was LM who had had the last contact with S before he fell.

41 Of course, the jury might have concluded that they could not be satisfied beyond reasonable doubt that either version was correct. In that case, they would have been obliged to acquit both Baker and LM. But that was far from being the only conclusion reasonably open to them. The jury were entitled to prefer one version over the other. In particular, they were entitled to prefer the first version, which implicated Baker and effectively exonerated LM. That is exactly what counsel for LM in his final address urged the jury to do.

42 There was, in my view, a perfectly sound basis for the jury to prefer the accounts of Doig and Arcaro over the conflicting accounts of Asfer and Masonga. The former were clear and consistent in their descriptions of Baker's actions and, crucially, were quite specific about having observed Baker's attack on S, leading up to and including the moment when S went through the glass. Each of them had been close at hand and said that he had been watching Baker's attack.

43 On the other hand, Masonga's credibility was under a serious cloud. Given Masonga's admitted fabrication of his original answers to police, it was well open to counsel for LM to urge the jury (as he did) to view him as 'a self-confessed liar, an inventor of stories, a fabricator, a perjurer.' Masonga was the only one to describe two separate fights as having occurred and, counsel submitted, the second fight should be viewed as another of Masonga's inventions. Masonga had, moreover, given quite unsatisfactory explanations for changes in his testimony between the committal and the trial. Counsel for LM also pointed out that Asfer, who claimed to have been holding Baker while S was being attacked, was the only witness to describe Baker (when on the landing) as having had a top on. Everyone else had described him as being bare-topped.

44 Quite properly, senior counsel for Baker conceded, in the course of argument on the appeal, that there was evidence on the basis of which the jury could have been satisfied beyond reasonable doubt that it was Baker who struck the final blow on S. He acknowledged that there was nothing to preclude a reasonable jury from coming to that conclusion.[5]

45 Having made that concession, however, senior counsel for Baker pointed out - correctly - that the question of Baker's intent remained to be considered. It is to that issue that I now turn.

Was Baker proved to have had the requisite intent at the relevant time?

46 In final address, counsel for Baker drew the jury's attention to the Crown's obligation to prove intent:

What is critical to bear in mind here is the Crown must prove that when the final act occurred, the final push, punch or (I think it even changed from forcing to manoeuvring at one stage but I will use the word force) that final act at that point in time necessarily had that intent of really serious injury, not that he had it 30 seconds earlier, five minutes earlier or whatever number of minutes earlier it is inside the venue. ... [W]hat is most important is actually to look at the act itself which is being relied upon for saying the intent accompanies this act which causes the man to go through the window. And we have it summed up in this phrase: "It was a push or a punch or force or manoeuvring" ...

47 Counsel emphasised that this was not a case where a weapon had been used, where the inference of intent might more readily have been drawn:

... [T]he Crown submission is it is a punch or a push. There is no kicking for the final act and that is the critical time where the intent has to be proven. At the time the act was performed which caused, on the Crown case, the death, it must be accompanied with an intent to cause really serious injury. That is critical.

48 The submission on the appeal was to very similar effect. Senior counsel submitted that, on the evidence, it was a reasonable possibility that the act which caused the death was a push, and a push not accompanied with an intention to cause really serious injury. In developing the point, senior counsel submitted that 'you cannot get an intention to cause really serious injury from a push'. His submission was that no reasonable jury could have concluded that Baker pushed S with the intention of causing him really serious injury.

49 In response to questions from the bench, however, senior counsel modified the submission. He contended that a push or a shove, or some mechanism other than a punch, was not necessarily accompanied by an intention to cause really serious injury. But that proposition, which is uncontentious, does not make good the unsafe and unsatisfactory ground. For that ground to succeed, it had to be established that, on the evidence in this trial, the jury could not have concluded that the final push or shove was accompanied by the requisite intent. Put another way, it had to be shown that the evidence necessarily precluded a conclusion, beyond reasonable doubt, that Baker had the requisite intent at that moment.

50 Enough has been said already to demonstrate why that submission must be rejected. Far from the evidence precluding a conclusion beyond reasonable doubt that Baker acted with the requisite intent in the crucial moments, that conclusion was well open to the jury on the version of events which they accepted. The eyewitness accounts of Doig and Arcaro described Baker as having engaged in an unbroken, unrelenting, ferocious attack on S, from the time he ran back up the stairs (having apparently been provoked by some remark from S) and began punching and then kneeing S.

51 It was well open to the jury to conclude that the attack was continuing with full force at the moment when S crashed backwards through the glass. Indeed, in view of Doig's account of S 'literally flying through the window', it was the only reasonable conclusion to draw. The various descriptions of the flurry or frenzy of blows which Baker inflicted on S with hands and feet, and of his very angry demeanour, provided a very clear basis from which the jury could draw the inference, beyond reasonable doubt, that Baker did indeed intend to cause S very serious injury.

52 In his charge to the jury, the trial judge said:

The Crown must prove beyond reasonable doubt that the acts of the accused caused the deceased's death and the Crown must prove beyond reasonable doubt that at the time those acts were performed, the accused intended to cause really serious injury. But the Crown does not have to prove that the deceased died in a way that was intended or expected. If the Crown proves beyond reasonable doubt that the accused caused the death and had the necessary intention at the time, intention to cause really serious injury, it is no answer to say that death occurred in a way that was, to some extent, unexpected. That is the third element of the crime of murder, that the accused intended to kill or cause really serious injury.[6]

53 As his Honour explained in the absence of the jury, following a question from counsel for Baker, the highlighted passage drew on the decision of the High Court in Royall v The Queen,[7] in which several members of the High Court quoted with approval the following statement of McGarvie and O'Bryan JJ in R v Demirian:[8]

If a person creates a situation intended to kill and it does kill it is no answer to a charge of murder that it caused death at a time or in a way that was to some extent unexpected.

With respect, the direction which his Honour gave was perfectly appropriate in the circumstances of the present case.

54 To pose the question, as both the trial and appeal submissions for Baker did, whether a mere push could be said to evidence an intention to cause really serious injury was, in my view, quite artificially to segment what was in fact one unbroken sequence of events. In Royall,[9] Mason CJ referred to Meli v The Queen[10] in which, in different circumstances, the House of Lords had said that it was

impossible to divide up what was really one transaction in this way. There is no doubt that the accused set out to do all these acts in order to achieve their plan and as parts of their plan.[11]

So too in the present case. The jury were entitled to be satisfied that Baker set out to do 'all these acts' in order to achieve his objective of causing S really serious injury.

55 It follows, in my view, that there was no obstacle to the jury reaching the conclusion they did as to Baker's guilt. This ground therefore fails, and the application for leave to appeal must be refused.

56 I would refuse the application for leave to appeal against conviction for the reasons stated by the President.

[1] [1997] HCA 43; (1997) 147 ALR 440.

[5] R v Klamo [2008] VSCA 75; (2008) 18 VR 644, 654.

[7] [1991] HCA 27; (1991) 172 CLR 378 ('Royall').

[8] [1989] VicRp 10; [1989] VR 97, 113.

[9] [1991] HCA 27; (1991) 172 CLR 378, 392.